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Bill Grant Column December 02, 2008

Lawsuit on political signs may help clarify confusion about HOAs

The lawsuit filed against six subdivision homeowners who defied the orders of the Grand View Homeowners Association president by placing political signs in their yards prior to the election might seem like an inconsequential spat among neighbors, but serious issues are at stake here. First Amendment rights are never trivial, and none are more fundamental than the right to express our political opinions.

Grand View is not the only neighborhood subjected to similar restrictions of First
Amendment rights. Like the Grand View Six, I had placed political signs in my yard under the assumption that 2005 Senate Bill 100 granted the right to all homeowners to display political yard signs. My HOA president was more diplomatic than Grand View’s, but she was no less insistent that my interpretation was wrong. I agreed to remove the signs until I could research the law.

Had I known of the Grand View Six, I would have left my signs up in solidarity. I have talked to several people both before and since the election who are unsure of their right to place political signs on their private property. The U.S. Supreme Court has determined that civic bodies like municipalities cannot forbid political signs on private property, but they have not ruled directly on the power of private homeowner associations to restrict this form of political speech.

Political signs may seem a nuisance or eyesore to some residents, but they are too important to the political process to be taken lightly. In a process increasingly dominated by large contributors, the yard sign is the most democratic expression we have of pubic sentiment. To deny this expression to homeowners who are required to join HOAs as a condition of purchase is a serious interference with both individual liberty and the political process.

Apparently the Colorado Legislature thought it had addressed this issue in 2005 with the introduction of Senate Bill 100: “A Bill for an Act Concerning Increased Protection for the Homeowner,” signed into law by Gov. Bill Owens the next year as a revision of the “Colorado Common Interest Ownership Act.” The original summary of the bill explicitly stated that one intent of the law was to prohibit HOAs from abuses of power, including “adopting rules that prevent a homeowner from: displaying an American flag or political sign.”

Despite the intent of the Legislature, some HOA leaders have interpreted SB 100 to exclude HOAs that collect less than $300 in annual dues from their members. Since Grand View is not the only community to interpret the law as allowing restrictions on the First Amendment rights, it is safe to assume that the statute is unclear on this issue. This problem should not be difficult to fix with more precise language.

But, the Grand Valley Homeowners Association claims in its lawsuit that “the First Amendment does not prohibit plaintiff from barring political signs upon lots within the homeowners association,” because “the First Amendment applies to government entities and not to private organizations which Grand View Homeowners Association is.” In other words, the requirement in SB 100 that HOAs permit political signs might be unconstitutional.

The Grand View association is not without support for its position. The Colorado Homeowners Association Law Blog concludes that, in the absence of state involvement in the operations of a community association, there is “no application of the Constitution’s protection of free speech, free expression or free association.” Even the liberal First Amendment Center agrees that the Supreme Court has not recognized a free speech right for communities administered by HOAs, but it concludes that the state, under its own Constitution, can extend such protection.

Important rights are at the heart of this case. Homeowners deserve the First Amendment rights other Americans enjoy, while HOAs need a guide to the limits of their restrictive powers. Thanks to the Grand View Six standing up for their rights, a court will clarify the issue. Hopefully, we may all be able to display our political signs in 2010 without controversy.

Bill Grant may be reached at .(JavaScript must be enabled to view this email address).